Fiancee Visa or Spousal Visa

[kennym 275]

I have friend in Colombia, who is engaged to an America Citizen. The American Citizen is a Student currently residing in Canada. The are considering submitting the Petition for a Fiancee Visa or possibly get married in Colombia and petition for a spousal Visa. one concern they have is meeting the income requirement.. What are their options for meeting this requirement. If the US Citizens's income is below the required level, which option is best for them. Fiancee Visa or Spousal Visa?

Which Option provides the least complicated path to the Visa?

[kennym 275]

Additional Info

After, they're married, they both intend to live in the USC's home state of Conneticut.

In recent past years, his income has been in Canada and has no US tax returns filed for the past 3 years. He (USC) is 30 Years old, the Benficiary is 23 yo.

Thanks

Kenny

[trailmix 77]

Hi,

I'm not sure which is the least complicated in this scenario - I am not that familiar with the consulate in Columbia.

With the I-134 - which is the form submitted for a K1, some consulates do not allow a joint sponsor - hopefully someone who has dealt with this consulate can address that question.

That may be the deciding factor on whether or not they should pursue the CR1 instead.

Question: Why has he not filed tax returns? Did he earn little to no money? If not, he is probably required to file. May or may not be a huge deal with an I-134, absolutely mandatory for the I-864. He is still the primary sponsor, even though he cannot count his Canadian income - so he needs to check the cut off amounts for each year.

[kennym 275]

TrailMix

Thanks for your reply,

The reason for no tax returns is that he has not lived in the US for the past 3 years.. His jobs have been temporary Part Time earnings in Canada.. He is likely below the minimum income requirement.. Can he use a co-sponser for a fiancee visa, or if they file for Spousal, are they required to meet the Minimum Income requirements at this stage or later in the process?

Looking for some addtional thoughts...

Thank You all in advance for your help..

[trailmix 77]

He really needs to double check the cut off for filing a U.S. return for each year, 07, 08 and 09. He can do this by going to the IRS prior year's returns page and selecting the 1040 instructions.

For instance in 2007 the cut off for filing single was $8750.00 - a small amount.

He can use a joint sponsor for a spousal visa definately.

Even if he applies for a K1, once the fiancee has entered the U.S. they need to adjust status. At that point they must submit an I-864. That's why I brought up that he should check the cut offs, will save him time later on if he indeed needs to file - because he cannot submit an I-864 without it. If he does not submit returns, he needs to state why and the only reason why would be if he fell under the cut off amounts.

One other thing to consider, when is he returning to the U.S.? He must be domiciled in the U.S. to be a sponsor (for any visa). Now he can try to prove reestablishing domicile - but that's a whole other kettle of fish and I don't want to get your thread off track.

Edited May 8, 2010 by trailmix

[kennym 275]

Hello all

Still looking for feedback...

This couple are personal friends of mine from my travels to Colombia..

We have questions and I am not sure how to answer them...

With the USC living in Canada, and foriegn fiancee in a diferent country, being that the USC earnings are below the poverty line, what is the best route for these guys?

If the USC Citizen travels to Her Country to get married, then petitions for the Spousal Visa, how will that work being he is living outside the US in a diferent country?

She is considering apply for a tourist visa to come and meet him in the US and my thoughts are that could complicate the Spousal or Fiancee Visa for them being that it's likely she'll be denied.

She was already denied a tourist Visa into Canada last year.

Would it be dificult if he stays in Canada? Should he consider making his residense in the US while pursueing either the Spousal Visa with a co sponser or Fiancee Visa with a Co Sponser?

I hope some of you VJ'rs can help this young couple. They're hoping for some encouraging thoughts and some good advise..

[Danu 19]

Hello all

Still looking for feedback...

This couple are personal friends of mine from my travels to Colombia..

We have questions and I am not sure how to answer them...

With the USC living in Canada, and foriegn fiancee in a diferent country, being that the USC earnings are below the poverty line, what is the best route for these guys?

If the USC Citizen travels to Her Country to get married, then petitions for the Spousal Visa, how will that work being he is living outside the US in a diferent country?

She is considering apply for a tourist visa to come and meet him in the US and my thoughts are that could complicate the Spousal or Fiancee Visa for them being that it's likely she'll be denied.

She was already denied a tourist Visa into Canada last year.

Would it be dificult if he stays in Canada? Should he consider making his residense in the US while pursueing either the Spousal Visa with a co sponser or Fiancee Visa with a Co Sponser?

I hope some of you VJ'rs can help this young couple. They're hoping for some encouraging thoughts and some good advise..

The USC must be in the states to file any visa except the DCF (which not all consulates allow, you would have to check into the one in Colombia) but in that case they must be living together in the same country. He would have to move back to establish his domicile again or they won't be able to file. Applying for a tourist visa and being denied won't be an issue for either visa, as they are 2 different types and the requirements for each are different. If he goes to her country, gets married and they allow DCF, I believe he has to live there 6 months to be able to file it, but it would work provided he could prove that he has a place to stay in the states, as well as a job lined up and a bunch of other things to prove domicile. Regardless of where he lives if he doesnt meet the poverty lines he would need a co-sponsor and not all countries allow them. Again this would be something you would have to check on from the regional boards to see if Colombia does or does not. Really at the moment I see his best option as returning to the states, getting his domicile and job fixed up and then applying.

[kennym 275]

The USC must be in the states to file any visa except the DCF (which not all consulates allow, you would have to check into the one in Colombia) but in that case they must be living together in the same country.

Danu, Thank You Very Much for your reply

I read someplace that possibly there are some exceptions to filing while outside the US and being a student appears to be one of them... Maybe someone can shed some light on this.. I am going to try to find where I read this..

Also, according to the guides on VJ,

DCF Info

To Qualify: U.S. consulates will typically only do this for US citizens who are Legal Residents of the country (typically for at least six months) in which the US Consulate sits (overseas). You will be required to show proof. This can be any country with a US Consulate (that the US Citizen is a resident) and need not be the country in which the Non-US Citizen Spouse lives.

Maybe someone can shed some light on this as Far as DCF, in Canada, with Non USC Spouse in Colombia...

Thanks again all..

[Danu 19]

Danu, Thank You Very Much for your reply

I read someplace that possibly there are some exceptions to filing while outside the US and being a student appears to be one of them... Maybe someone can shed some light on this.. I am going to try to find where I read this..

Also, according to the guides on VJ,

Maybe someone can shed some light on this as Far as DCF, in Canada, with Non USC Spouse in Colombia...

Thanks again all..

Not sure on the student part but for DCF they must both be residing together in the same country and be married to be able to file. Usually you have to be a resident for a set amount of time (in Canada its 6 months as far as I know) to qualify, and not all consulates will allow for DCF to be done. She would need to be able to get into Canada on a legal residency to be able to file DCF in Canada.

[JimVaPhuong 4,864]

Hello all

Still looking for feedback...

This couple are personal friends of mine from my travels to Colombia..

We have questions and I am not sure how to answer them...

With the USC living in Canada, and foriegn fiancee in a diferent country, being that the USC earnings are below the poverty line, what is the best route for these guys?

If the USC Citizen travels to Her Country to get married, then petitions for the Spousal Visa, how will that work being he is living outside the US in a diferent country?

She is considering apply for a tourist visa to come and meet him in the US and my thoughts are that could complicate the Spousal or Fiancee Visa for them being that it's likely she'll be denied.

She was already denied a tourist Visa into Canada last year.

Would it be dificult if he stays in Canada? Should he consider making his residense in the US while pursueing either the Spousal Visa with a co sponser or Fiancee Visa with a Co Sponser?

I hope some of you VJ'rs can help this young couple. They're hoping for some encouraging thoughts and some good advise..

Trailmix already answered your questions, from what I can see.

Generally speaking, the minimum income requirements are the same, whether he is sponsoring her for a fiancee or spousal visa. If he can't qualify, he'll need a co-sponsor who can. If he's hoping that one type of visa will allow him to sponsor on his own without meeting the minimum income requirements, he might as well give up that hope right now.

Whether or not he gets a co-sponsor, he will be the primary sponsor ALWAYS, even if he doesn't meet the income requirements. Any sponsor, whether the primary sponsor or a co-sponsor, must be a US citizen or LPR, and must reside in the United States. He CAN file an I-129F petition for a fiancee visa while he's living abroad, but he'll need to establish domicile in the US before he can sign the I-864 affidavit of support for her green card application. If he gets married, then he'll need to sign the I-864 before she gets a visa, which means he'll need to prove domicile in the US, or prove intent to establish domicile when she arrives. This is complex subject deserving of an entire thread on it's own.

Also, although the I-129F can be filed while the petitioner is living abroad, it can only be filed with USCIS in the United States. It cannot be filed at a US consulate or embassy abroad. USCIS will NOT send documents related to the petition to an address abroad - he'll need to provide an address in the US for them to send mail. This is critical because the approval notice they send will be required when it comes time to file for the green card. With a K1 visa they absolutely must marry in the US within 90 days of her arrival. If they don't satisfy this requirement, she will not be eligible for a green card.

DCF is "Direct Consular Filing". It's not a special category of visa. It's a regular spousal visa petition. The only difference is that the petition is submitted directly to the consulate instead of USCIS. In order to file DCF the petitioner must be living in the foreign country where the DCF is being submitted, and where the interview will take place. Unless your friend is willing to move to Columbia, get married, and then live there for an extended period of time, then DCF will not be an option for him. He will STILL have to meet the minimum income requirements, or have a co-sponsor who does, and he will STILL need to establish domicile or prove intent to establish domicile.

Please, if you haven't already read the guides, do so now. Have your friend read them, as well. Almost every question you've asked in answered in the guides.

[trailmix 77]

The USC must be in the states to file any visa except the DCF (which not all consulates allow, you would have to check into the one in Colombia)

Just to clarify, The USC does not have to be in the States to file a petition for a visa and as Jim mentioned, they just have to file with USCIS in the U.S.

[kennym 275]

As ussual... lots of good help from everyone here..

Thanks all of you, for your responses...

I just wanted to get your thoughts to confirm that I undertood these things properly.. I didn't want to give them bad advise...

You guys were all very helpful...

So basically, the USC needs to check on his Tax Situation, then search for co-sponser from family or friends...

Thanks agian..

Kenny

[JimVaPhuong 4,864]

As ussual... lots of good help from everyone here..

Thanks all of you, for your responses...

I just wanted to get your thoughts to confirm that I undertood these things properly.. I didn't want to give them bad advise...

You guys were all very helpful...

So basically, the USC needs to check on his Tax Situation, then search for co-sponser from family or friends...

Thanks agian..

Kenny

Filing taxes while living abroad is a complicated subject. It's not the same as filing taxes while living in the US. Sometimes it will be required to make estimated tax payments quarterly, since employers in foreign countries won't withhold US income taxes for their employees. Some income may be excluded from US income tax liability, especially if income taxes were paid to the foreign government. Tell your friend to get IRS publication 54 for each tax year he's lived abroad. This describes the tax consequences for US citizens living abroad.

You already know that he'll need to submit an affidavit of support, even if his income isn't sufficient and he'll be getting a co-sponsor. If it turns out that he wasn't required to file a tax return for any of those years, then the consulate will usually want a letter explaining why no tax returns needed to be filed.